Unbundled Legal Services And Ghastly Legal Opinions

Law.com presents an article about a federal magistrate who took umbrage at a lawyer's drafting pleadings for a pro se plaintiff:

Ghostwriting pleadings for a pro se litigant violates a lawyer's ethical duty of candor to the court and may amount to a violation of federal court rules, a U.S. magistrate judge holds in a case of first impression in New Jersey.

Apparently the defense lawyer objected that the pleadings were too good for the pro se litigant to have prepared herself, and when questioned (as instructed by the lawyer who was assisting her) the litigant identified the lawyer who drafted the pleadings. The magistrate made a two-part objection to the lawyer's ghost writing of the pleadings:

First and foremost, she said, courts generally construe pro se litigants' pleadings liberally and are more flexible in applying procedural rules. "Simply stated, courts often act as referees charged with ensuring a fair fight," she said. "This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help."

That's "first and foremost"? It's patently silly. If you assume that a judge is competent to evaluate pleadings, it should follow that the judge will be able to figure out when extra latitude is or is not required.

There's no rule that judges have to give latitude to all pro se litigants, nor is there any rule that all pro se litigants must be treated equally. If I were a pro se litigant, and the judge knew that I was a lawyer, I wouldn't expect any latitude with my pleadings - and the judge wouldn't give me any. The magistrate didn't have to give this pro se litigant any latitude, as the pleadings appear to have been of professional quality. Either the litigant had help, and thus no extra latitude was required, or the litigant was exceptionally capable and, again, no latitude was required. There's not even a claim that extra latitude was given.

Bongiovanni found that undisclosed ghostwriting violates RPC 3.3, which charges lawyers with a duty of candor to the court. Although she found Shapiro advised Delso to answer honestly if questioned about his participation, his failure to affirmatively notify the court of his informal assistance to Delso was "not emblematic of the candid honesty contemplated by RPC 3.3," she wrote.

I again disagree. That rule provides,

RPC 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures; or

(5) fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by RPC 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse.

Interpreting a similar rule, Arizona applied my preferred "Judges aren't stupid" analysis:

While acknowledging the existence of the above opinions, the Committee finds that disclosure to the court or tribunal of an attorney's assistance with a court filing is not necessary when the pro per client submits the document for filing. The Committee concludes that the submission of ghostwritten documents without informing the court or tribunal does not violate ER 3.3(a)(1) and ER 8.4(c) because the practice is not inherently misleading to the court or tribunal. When presented with a document prepared with the assistance of counsel, the Committee believes that a court or tribunal can generally determine whether that document was written with a lawyer's help. ER 3.3(a)(1) proscribes against an attorney making or failing to correct a false statement of fact or law to the court or tribunal. We do not believe that the omission of an attorney's name from a filed document is a false statement of fact or law that is either made or needs to be corrected. Because the disclosure of an attorney's assistance with court filings is not obligatory under the ethical rules, by deduction, the submission of ghostwritten materials by a pro per client does not contravene ER 8.4(a)'s prohibition against violating the ethical rules through the acts of another, such as the attorney's client.

Some courts and ethics committees have evidenced disfavor with lawyers ghostwriting court documents because they believe the practice provides an unfair advantage in that courts are willing to afford more leeway to pro per clients. ... The authorities argue that a pro per party who is actually receiving the services of a lawyer thus receives the benefits of legal assistance and special treatment by the court at the same time. Another view is that it interferes with a court's ability to superintend the conduct of counsel and parties during litigation. ... Notwithstanding these arguments, courts are usually able to correctly assess when to afford pro per litigants appropriate latitude and when these litigants are being given the benefit of assistance of counsel. For case management purposes, a court can confirm the existence of assisting counsel by directly asking the pro per litigant if the issue becomes important to the resolution of the case.

I also agree with the Arizona opinion's sentiment that where no rule of disclosure exists, judges shouldn't fabricate one ("Imposing this type of disclosure rule, however, exceeds the scope of our authority.")

Bongiovanni further found that undisclosed ghostwriting violates the spirit, if not the letter, of Federal Rule of Civil Procedure 11 and Local Civil Rule 11.1, which require attorneys to certify and sign their submissions to a court. Some federal courts have found ghostwriting a per se Rule 11 violation, but Bongiovanni declined to go that far.

FRCP 11 provides,

Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

(a) Signature.

Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of attorney or party.

Here there was no attorney of record, and there is no claim that the individual litigant did not sign the pleading. I think it is an unjustifiably attenuated reading of "if the party is not represented by an attorney" to rewrite the rule to require a counsel not of record to sign a ghost-written pleading. The local rule seems to apply a common sense reading:

Civ. Rule 11.1 Signing of Pleadings

In each case, the attorney of record who is a member of the bar of this Court shall personally sign all papers submitted to the Court or filed with the Clerk.

The attorney was not of record.

Further, if the problem is that the judge needs to know who is ghost-writing briefs such that she does not grant a pro se litigant extra latitude (even though it is obvious none is needed), why this remedy?

Bongiovanni ordered that Shapiro enter an appearance by March 30 if he wants to represent Delso, or else cease communicating with her about the case.

Why not just concoct the rule that the ghost-writing lawyer must be identified as the author of the pleading?

This type of ruling puts the pro se litigant in the position of being able to get some (but quite possibly an inadequate amount of) help from a lawyer, or to hire a lawyer. If we're going to accept that judges have so much concern for pro se litigants that they will bend the rules of civil procedure to assist them in the presentation of their cases, why simultaneously leave them in a situation where they likely cannot get the amount of outside legal assistance they need, because they either cannot find a lawyer who will take their case or cannot afford to retain a lawyer to represent them in court, as opposed to drafting the pleadings they require?

"Trust Me"

What a generous offer....

The White House says it will make Karl Rove and former counsel Harriet Miers available to testify — but not under oath — about the dismissal of eight U.S. attorneys in 2006.

How could anybody look that gift horse in the mouth....

From Where Should We Expect Better Iraq Policy?

A couple of days ago in The Long Exit David "Babbling" Brooks attacked those who suggest that Iraq's government is shirking its duties. You know, the liberal democrats who say things like this:

Iraqi leaders must step up to achieve key political and security milestones on which they have agreed.

Or the weak-kneed, cut-and-run liberals who say things like "There is no military solution to a problem like that in Iraq, to the insurgency of Iraq." Apparently only Democrats like Carl Levin would say such absurd things:

The essential Levin argument was that the Iraqi leaders have been shirking their duties and it’s time to force them to get serious. “It is time for Congress to explain to the Iraqis that it is your country,” Levin declared. It is time to shift responsibility for Iraq firmly onto Iraqi shoulders, and give them the incentives they need to make the tough choices. The Democratic timetable resolution, Levin concluded, “will deliver a cold dose of reality to Iraqi leaders.”

But does anybody think that Iraqi leaders, many of whom have seen their brothers and children gunned down, need a cold dose of reality delivered from the U.S. Congress

Right, David... Surely no Iraqi leader would welcome troop withdrawal as a wake-up call to his countrymen.

People who criticize bloggers as reactive, with the majority doing no real reporting and simply commenting on events they read or see in the news, take note: At least, unlike David Brooks, they are taking the time to keep up with the news.

There is some merit to Brooks' criticism of Democrats as not wanting to join either of the two sides of the Iraq war debate - those who argue for withdrawal on the basis that"the place is headed for civil war, there’s nothing we can do to stop it, and we certainly don’t want to get caught in the middle,", or those who assert " We have to do everything we can to head off catastrophe ... We should perhaps build on the promise of the surge with regional diplomacy or a soft partition, but we certainly should not set timetables for withdrawal." But at the same time he paints a false dichotomy in order to contain the Democrats in the middle - there are other political, diplomatic and military options which could be pursued, but won't as long as Bush is in the White House. It might be nice in some respects if the Democrats were more forceful, but Brooks has to know that its not entirely honest to criticize them for disfavoring what could be a disasterous short-term pull-out while refusing to endorse Bush's continued wholesale ineptitude.

Say what you will about President Bush, when he thinks a policy is right, like the surge, he supports it, even if it’s going to be unpopular. The Democratic leaders, accustomed to the irresponsibility of opposition, show no such guts.

But Bush doesn't refuse to change his mind on bad policy because he's unafraid of the polls. He refuses to change bad policy because he's stubborn, and pathologically afraid of admitting that he has made mistakes.

Bill Kristol noted about four years ago that Bush had driven the nation into a ditch with his incompetent Iraq policy. Kristol does not seem so sure any more, recently writing "It should be obvious that 'staying the course" is a recipe for failure.'" But Brooks delights in riding shotgun with a President who, four years later, insists that he knew what he was doing when he drove into the ditch and, if he just keeps on doing exactly the same thing over and over again... well, he's not even promising that he'll get us out of the ditch. He's going to leave that job to the next President.

Is the surge, of itself, enough to get us out of the ditch? As I noted at the outset, albeit while forcing those who haven't been following the news to follow a link to get the whole story, the guy in charge of the surge, General Petraeus, doesn't think so. So when Brooks writes,

Liberals recognize the cynicism of it all. Republicans know the difference between principled opposition and unprincipled posturing.

Is he describing what he anticipates to be the reaction to his column? If Brooks had a backbone, perhaps he would choose which side he's on, then (assuming he's every bit the keyboard commando he appears to be) start describing concrete policy changes which will be necesseary to achieve success, and the measurable, sustained improvements that will serve as signs that we are, in fact, succeeding.

Google and Privacy

I think they could go a bit further without losing valuable data, but it's a start.

The search engine ... said it would destroy huge tracts of identifying information it holds on internet searches. Information such as who made what search and when is kept "for as long as useful" but under the new policy, all identifying data will be erased after 18-24 months.

Sweep It All Under The Carpet

That's the Washington Post's advice to a prosecutor who, while finding that there is not a makeable case for the criminal conduct under investigation, finds that witnesses have lied to him and intentionally obstructed the progress of his investigation.

The fall of this skilled and long-respected public servant is particularly sobering because it arose from a Washington scandal remarkable for its lack of substance. It was propelled not by actual wrongdoing but by inflated and frequently false claims, and by the aggressive and occasionally reckless response of senior Bush administration officials -- culminating in Mr. Libby's perjury.

Most people don't commit perjury unless they fear that something substantive will be revealed if they were to tell the truth. (Should I say "All"?) So let me register my disagreement: If you lie to a grand jury, you deserve to be indicted. No more substance is required.

Believe It Or Not, This Story Ends With The Issuance Of Several Tickets

A driver recounts,

I stopped at a red light two lanes one way two lanes the other. the light went green and i accelerated a normal rate of speed. A police car pulled out in front of me from a parking lot (maybe 50 yards from the light) and almost stopped in my lane. He was heading across two lanes and going into the other two lanes heading the other way. I proceeded towards him at about 25 mph (the speed limit) and honked to get him to move out of my way.

But That Was Different

Andrew Sullivan explains why it was "high camp" to call Al Gore a "total fag", but wrong to call John Edwards a "faggot":

My only response to my reader is that seeing her live in front of a young, cheering crowd made me feel a lot less complacent. Being a gay man in a crowd that cheers a woman denigrating someone for being a "faggot" is an educative experience.

That unfortunate laugh track....

Seeing college kids line up to worship her tore me up. These kids deserve better. They're young and smart enough to be interested in conservatism - and this is what they are getting?

They're young, of average intelligence as compared to their peers, and they're interested in Ann Coulter. The rest is wishful thinking.

It Was Funny When It Was Said By A Talking Doll, But....

I gave up on Townhall.com a long time ago, as you rarely learn anything from one of its screeds that you can't discern from the headline and byline. Daniel Larison apparently has a greater tolerance for palaver than I, and he brought my attention to Mary Katharine Ham's reaction to Coulter's "faggot" joke.

Point being, I had a soft spot for Ann. When I left N.C. to move to D.C. a couple years ago, a friend gave me one of those talking Ann Coulter dolls, which I immediately set about hiding in my liberal editor's office, rigged to squawk about liberalism every 10 minutes. Heh. Luckily, he was a good-humored man.

Oh, tee hee. What sort of things does that doll say?

"Liberals hate America, they hate flag-wavers, they hate abortion opponents, they hate all religions except Islam, post 9/11. Even Islamic terrorists don't hate America like Liberals do. They don't have the energy. If they had that much energy, they'd have indoor plumbing by now."

Oh, how hilarious. I mean, how unfunny. As Ms. Ham says,

I, for one, am proud that there are Middle Easterners, gay men and women, and other minorities for whom conservatism is an ideology that empowers. Don't they get enough crap from our lefty colleagues for "leaving the plantation?" Why should they be subjected to more from one of their supposed allies?

Am I wrong to infer that she intends that comment to include followers of Islam?

So the "joke" that was funny (or at least not inappropriate) when originally made by Ann Coulter, and which was funny when repeated by an Ann Coulter doll in her (good natured, tolerant) liberal editor's office, would have been horribly inappropriate if repeated years later at the CPAC event?

Why am I still left thinking that the real problem was the laugh track.

Ann Coulter's Inappropriate Laugh Track

Through Lawyers, Guns & Money, I was introduced to a piece of ambush journalism from CPAC which starts with Michelle Malkin refusing to sign a photograph of Japanese Americans, interned during WWII, and closes with Ann Coulter's now infamous "faggot" joke. I'm not a huge fan of ambush journalism, but I'll leave that topic for another day. I did appreciate the opportunity to see Ann Coulter make her joke, and to get a better impression of why it flopped.

The problem isn't that it was different or more inflammatory than her past rhetoric. It wasn't.

The problem is that she had a laugh track.

In fairness to the CPAC audience, the laughs were far from uniformly appreciative of the joke. There's enough groaning and surprise mixed with the laughter to let you know that many people were reacting to the outrageousness of the statement, which was probably Ann Coulter's expectation - this is her M.O. Does anybody contend that she truly believes John Edwards to be gay? There's nothing clever about a third grade insult like, "He's gay", but Ann Coulter has built her career largely on similarly childish insults.

The problem this time is that there was obviously a significant percentage of her audience who found her funny. Had she made the same comment on a show like Real Time With Bill Maher{, the audience would have... oh, how did Hitchens put it... they would have made "booing and mooing noises". Ann Coulter would have displayed her trademark smug smile and said something derisive about the audience (like, they're so PC they'll want to send her to rehab for making that joke). And everything would have carried on as usual.

The problem here isn't that Ann Coulter did something more outrageous than she's done before. The problem isn't that she embarrassed herself - to the extent that she ever had any shame, she gave it up a long time ago in pursuit of riches. The problem is that this time she got a large number of self-described conservatives at a major conservative event to embarrass themselves. Ann Coulter did what a good speaker does - she knew her audience, she spoke to her audience, she connected with her audience, and she told a joke that worked with her audience. The conservative horror, be it feigned or real, is not a reaction to what she revealed about herself, but is to what she revealed about a large percentage of self-described modern conservatives.

Another Reason Not To Use ATM-Style Voting Machines

A number of arguments have been made about electronic voting machines, the lack of a paper trail, the potential lack of security in the software, the fact that the source code is not public, potential for switching or erasing memory cards, etc. But there's another reason why governments should be careful about investing heavily in these machines, over cheaper or mechanical alternatives. If you're paying $3,000, $4,000, $5,000 or more per machine, for how many elections are you expecting to use the machines? What if you find yourself suddenly unable to get software patches, replacement parts, or repair services?

Diebold Inc. saw great potential in the modernization of elections equipment. Now, analysts say, executives may be angling for ways to dump its e-voting subsidiary that's widely seen as tarnishing the company's reputation.

* * *

Might Diebold choose to keep the voting business and grow it?

"It's a possibility, but I'd assign it a very low probability," Luria said.

Sure, they may sell their voting machine division, but then there are issues about who's buying it and why. If it's a private equity firm, which the article suggests as a possibility, who will they sell it to? What company with a good reputation in this type of manufacture will look at Diebold's experience and not be concerned about its own reputation?

There's no scandal in scantron voting systems - you have paper ballots, accurate counts, easy recounts, fewer machines per polling station, easier setup.... Maybe it's time for our nation's politicians to stop gushing, "Oooooh, shiny..." every time they see a costly high-tech gadget they can buy with taxpayer money.